Transcript PowerPoint-presentatie

Legal perspectives in coastal
zone management
Symposium
A future for fisheries?
Towards effective strategies for sustainability
KULeuven – 5 February 2008
Prof. dr. F. Maes – Maritime Institute – Ghent University
Outline
- Problem
- Law of the sea
- Land-sea perspective (EU)
- Integrated coastal zone management
- Water framework directive
- Sea-land perspective (EU)
- Marine spatial planning (MSP)
- Marine strategy (EU)
Prof. dr. F. Maes – Maritime Institute – Ghent University
Problems:
- increased spatial claims
- increased intensity of activities
- loss of biodiversity
- decline of ecosystems
- new threats: exotic species &
climate change effects
Prof. dr. F. Maes – Maritime Institute – Ghent University
International law & governance
- Law of the Sea Convention (1982): right for CS to
unilateral regulate activities at sea – except shipping & the
duty to protect the marine environment (not only
prevention, but also nature protection + conservation)
- EEZ: driving force for nat. authorities to regulate new
uses + improve protection of marine environment.
- Int. conventions (Ramsar, CBD, …) stimulate species
protection, habitat protection and ultimately ecosystem
protection. Success depends on planning scale.
Prof. dr. F. Maes – Maritime Institute – Ghent University
Prof. dr. F. Maes – Maritime Institute – Ghent University
The land – sea perspective
Prof. dr. F. Maes – Maritime Institute – Ghent University
Integrated costal zone management
Problem: different national authorities are scattered over different
policy levels competent for terrestrial and marine areas. Decision
making is fragmented and often conflicting due to:
‣ Weak horizontal integration => no internal streamlining for coastal
management policy within one institutional level
‣ No vertical integration => most of the coastal projects cross the
land-sea interface and therefore lack interaction between different
institutional levels
‣ ICZM should bridge the gap
(e.g. 1972 US Coastal Zone Management Act)
Prof. dr. F. Maes – Maritime Institute – Ghent University
Integrated costal zone management
- International instruments promoting ICZM are “soft law” (Chapter 17,
Agenda 21; Plan of Implementation WSSD – 2002)
- European Recommendation on ICZM (2002/413/EC) introduces 8
principles: overall perspective, long-term perspective, adaptive
management, local specificity and great diversity, working with natural
processes, public participation, support & involvement of relevant
administrations, use of a combination of instruments to facilitate
coherence between policy objectives and planning/management.
- 21.01.2008 adoption of the Protocol on ICZM in the Mediterranean.
This protocol is the first example to implement ICZM beyond the level
of a national strategy
Prof. dr. F. Maes – Maritime Institute – Ghent University
ICZM added value to policy (Rupprecht 2006)
-
Reconciles short-term with long-term interests
Participatory methods make authorities accountable
Conflict resolution between stakeholders through public debate
Interface between terrestrial and coastal management
Rethinking of traditional planning approaches by reconciling
economic, social and environmental interests
Proper implementation of ICZM improves the livelihood and
employment of coastal areas
Prof. dr. F. Maes – Maritime Institute – Ghent University
ICZM in EU: elements for further attention
1.
2.
3.
4.
5.
6.
7.
Legal obligation to implement EU recommendation?
Common methodology to assess ICZM progress: further work on ICZM
progress indicators needed
Great diversity in national-local governance to implement ICZM due to
legislation, property rights, local situations (e.g. islands), …
Clarify the sea areas covered: all MS consider CZ including TS, a few
extend the CZ to their EEZ (some cannot e.g. Medit. Sea: seaward limit
is external limit of TS, or less)
Different stakeholder involvement due to different traditions and no real
public participation (use carefully to avoid over kill?)
Local dominancy should not ignore the bigger picture (avoid NIMBY
syndrome), while national authorities should feel involved
(misperception of scale – legal constraints – lack of ecosystems vision)
Long lasting international cooperation on ICZM beyond national
boundaries (cf. scientific cooperation)
Prof. dr. F. Maes – Maritime Institute – Ghent University
EU Water Framework Directive (2000/60EC)
Applies to surface water, groundwater, estuaries and coastal water
(1 NM)
Qualitative and quantitative aspects of water
Identification of individual river basins (including groundwater) and assign
them to river basin districts (incl. groundwater not following the basin). If
transboundary = international river basin district
Make a river basin management plan before 2009, with working programme
(2006), identification of important water management problems (2007)
and draft plan subjected to public participation (2008). Renewal every 6
years (2015, 2021, …).
Prof. dr. F. Maes – Maritime Institute – Ghent University
Objective:
Means:
Good surface water status
River basin management plans
input
Analysis
Programmes for monitoring
• Reporting
Programme of measures
• Public participation
Prof. dr. F. Maes – Maritime Institute – Ghent University
Good water status
At latest in 2015
• Surface water (SW)
good ecological
status
good chemical
status
good quantitative
status
• Ground water (GW)
good chemical
status
Prof. dr. F. Maes – Maritime Institute – Ghent University
Measures
2009: 1st program of measures
afterwards: control every 6 years + adjustments
2012: all measures 1st program should be operational
afterwards: 6 years cycle - measures should be
operational for next programs
Prof. dr. F. Maes – Maritime Institute – Ghent University
Public information and consultation (art. 14)
Encourage active involvement of all interested parties
• Through publication of
 timetable and work program river basin management plan
(2006)
 organization of public participation ( 2006)
 overview water management issues (2007)
 draft river basin management plan (2008)
• Access to
 Background documents & info draft plan
• public
 At least 6 months to comment in writing
Prof. dr. F. Maes – Maritime Institute – Ghent University
The sea-land perspective
Prof. dr. F. Maes – Maritime Institute – Ghent University
Marine spatial planning
Marine Spatial Planning (MSP) = a
process of analyzing and allocating
parts of the three-dimensional marine
environment to specific uses, to achieve
ecological, economic, and social
objectives that are usually specified
through the political process. The
process usually results in a
comprehensive plan or vision for a
marine region.
(Ehler & Douvere, UNESCO 2007)
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at international level
Law of the Sea Convention remains silent about MSP as a
management process.
However, this does not prevent coastal states from taking
MSP initiatives in their maritime areas. Article 123
UNCLOS promotes regional cooperation and
coordination to:
(a) manage, conserve, explore and exploit the living
resources of the sea;
(b) implement their rights and duties with respect to the
protection and preservation of the marine environment;
…
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at international level (MPAs)
Convention on Biological diversity is the most appropriate
global convention for advocating MSP to achieve an
ecosystem approach:
- MSP can enhance the implementation of integrated
marine and coastal area management (IMCAM) to achieve
the 2012 target for applying an ecosystem approach on a
regional seas level by trans-boundary protected areas
(TBPA’s).
- MSP can contribute to reduce the current rate of
biodiversity loss at the global, regional, national and subnational level (2010 biodiversity target).
- Problem for areas beyond national jurisdiction - high seas
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level (MPAs)
MPAs in the EU are based on small ecologically-defined
areas under the Birds Directive (1979) and the Habitats
Directive (1992) by designating Special Protection Areas
(SPAs) under BD and by designating Areas of
Conservation (SACs) under HD.
The establishment of SPAs and SACs are measures that
are mandatory under Community law and affect MSP.
Taken together they should form a network of protected
areas across the EU, known as Natura 2000, for which
Member states have to take protective measures.
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP BPNS
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level
The need for an ecosystem-based MSP of sea areas under jurisdiction
of coastal states is recognized by the European Commission in its
Green Paper, “Towards a future Maritime Policy for the Union: A
European vision for the oceans and seas” (2006).
The Green Paper considers an ecosystem-based marine regional
spatial planning as a tool to ensure investment decisions at sea and
refers to licensing, promoting or placing restrictions on maritime
activities.
It is recognized that under the current legal circumstances “individual
decisions on activities should be taken at a national or local level” but
that “a degree of commonality between the systems will be needed to
ensure that decisions affecting the same ecosystem or cross-border
activities”.
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
The proposed Marine Strategy Directive (COM(2005)505), as approved by
the European Parliament on 11 December 2007 relies on marine regions for
an ecosystem-based approach in which MS have to achieve and maintain
“good environmental” status of that marine environment by 2020* at the
latest.
This directive confirms the European marine regions as management units for
implementation (Baltic Sea, the North East Atlantic Ocean and the
Mediterranean Sea, and their sub-regions).
Each MS will be required to develop a marine strategy for its marine waters,
in close cooperation with other MS, to draw up cost-effective measures and
impact assessments in case of introducing new measures.
*Commission proposed 2021
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
Further objectives are (art.1):
1.
to protect and preserve the marine environment (ME), prevent
deterioration or where practicable restore marine ecosystems in
areas they have been adversely affected
2.
to prevent and reduce inputs in the marine environment with a
view of phasing out pollution so to ensure that there are no
significant impacts on or risks to marine biodiversity, marine
ecosystems, human health or legitimate uses of the sea
3.
to ensure that collective pressure of human activities are kept
within levels compatible to achieve a good environmental status
and that the capacity of marine ecosystems to respond to
human-induced changes is not compromised, while enabling the
sustainable use of marine goods and services by present and
future generations. (task for MSP)
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
“environmental status" means the overall state of the environment in marine
waters, taking into account the structure, function and processes of the
constituent marine ecosystems together with natural physiographic,
geographic, biological , geological and climatic factors, as well as physical,
acoustic and chemical conditions, including those resulting from human
activities inside or outside the area concerned;
“good environmental status" means the environmental status of marine
waters where these provide ecologically diverse and dynamic oceans and
seas which are clean, healthy and productive within their intrinsic conditions,
and the use of the marine environment is at a level that is sustainable, thus
safeguarding the potential for uses and activities by current and future
generations, i.e.: …
Good environmental status shall be determined at the level of the Marine
Region or Sub-Region on the basis of the qualitative descriptors (Annex I).
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
- By 2015: development of a program of measures to achieve or
maintain a good environmental status
- Programs of measures established shall include spatial protection
measures, contributing to coherent and representative networks
of marine protected areas, adequately covering the diversity of
the constituent ecosystems, such as special areas of conservation
pursuant to the Habitats Directive special protection areas pursuant to
the Birds Directive, and marine protected areas as agreed by the
Community or Member States concerned in the framework of
international or regional agreements to which they are parties.
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
Public participation
Member States shall publish, and make available to the public for
comment, summaries of the following elements of their Marine
Strategies, or the related updates, as follows:
a) the initial assessment and the determination of good environmental
status;
b) the environmental targets;
c) the monitoring programs;
d) the programs of measures.
Prof. dr. F. Maes – Maritime Institute – Ghent University
MSP at EU level: Marine Strategy
Preamble
(39) Measures regulating fisheries management can be taken in the
context of the Common Fisheries Policy, as set out in Council
Regulation (EC) No 2371/2002 of 20 December 2002 on the
conservation and sustainable exploitation of fisheries resources under
the Common Fisheries Policy, based on scientific advice with a view
to supporting the achievement of the objectives addressed by
this Directive, including the full closure to fisheries of certain
areas, to enable the integrity, structure and functioning of
ecosystems to be maintained or restored and, where
appropriate, in order to safeguard, inter alia, spawning, nursery
and feeding grounds .
Prof. dr. F. Maes – Maritime Institute – Ghent University
European state practice on MSP
Two legal approaches:
- MSP has no statutory basis. Legal basis = a
comprehensive maritime law introducing
prohibitions, concessions & permits for all
major users (except fisheries) after an EIA
procedure (Belgium, cf. offshore bunkering)
- MSP has a statutory basis (Germany)
Prof. dr. F. Maes – Maritime Institute – Ghent University
National MSP without statutory basis
Planning needs a strong maritime law (e.g. Belgium)
- pro: - flexible allocation of activities based on demands
- flexible public or stakeholder participation depending on urgency
- policy can easily be adapted based on new scientific knowledge
- contra: - does not solve competition among different governmental bodies:
no redistribution of competences in case of holistic approach
- planning does not take into account user-user conflicts for a
broader area than the one for which the permit ion applies
- no EIA or assessment of ecological effects for the whole planning
area, single use EIA
Prof. dr. F. Maes – Maritime Institute – Ghent University
National MSP with statutory basis
Spatial planning has a statutory basis (Germany, …)
- Pro: - legally enforceable duty for governmental bodies
- public participation can not easily be offset due to legal
procedures (access to courts)
- legal enforcement tools besides administrative enforcement
- a holistic legal basis for EIA or assessment of ecological effects
- better legal protection of user rights and nature
- improved management on a long term scale
Contra: - less flexible to take into account new scientific data due to rigid
procedures for planning adaptation & results of public participation
- high political and administrative resistance might result in
a weak plan
Prof. dr. F. Maes – Maritime Institute – Ghent University
Conclusion
MSP:
- Reduce conflicts among uses and users by establishing priorities
- Provides certainty to the private sector when planning
investments
- Promotes efficient use of space and resources
- Promotes ecosystem-based management for (new) activities
- Improves stake holder understanding during participation
ICZM:
- Introduce principles that should be used in MSP
- Bridge the land-sea developments in the EU (FDW-MSD)
- Improves national governance at sea
Prof. dr. F. Maes – Maritime Institute – Ghent University
Thank you
Prof. dr. F. Maes – Maritime Institute – Ghent University